By the Court, Mullin, J.
The triangle in question was dedicated to .the public for the purposes of a park or square, and the city of Syracuse, if it accepted the dedication, became seised of it, not in fee, but in trust for the public, charged with the duty of preventing its appropriation to any other uses than such as the donors intended, andvof securing to the public the enjoyment of the benefits which it was designed to confer. (Village of Watertown v. Cowen, 4 Paige, 510. Anderson v. Rochester &c. R. R. Co., 9 How. Pr. Rep., 553.)
Unless a private person, living in a corporation in which land has been dedicated for a public use, has acquired in some legal way an interest in such easement, from the person dedicating the land, he cannot maintain an action against a person or corporation interfering with or disturbing such easement; unless he sustains thereby some special and peculiar damage, which is not sustained by the great mass of the inhabitants. (See cases cited, supra.)
In Anderson v. Rochester &c. R. R. Co. (9 How., [165]*165561) the defendant had instituted proceedings under the general railroad act, to acquire the right to lay its track through a public square in the city of Rochester, a part of which had been dedicated to the public for the purposes of a public square, and a part had been purchased by the city, for the same purpose. A large portion of the price had been assessed upon the owners of lots fronting on the square. The plaintiffs were such owners, and commenced the action to restrain the defendant from- laying its track on the square, upon the ground that it would be injurious to the property of such owners. It was also claimed by the plaintiffs that if the track should be laid in the square it could only be upon payment to the plaintiffs of damages for the injury they should sustain thereby. An injunction was granted, but on appeal to the General Term it was vacated. Seldew, J., lays down the following propositions, which apply, in all their force, to the case before us.
1st. That when land is dedicated to the public use the fee remains in the original proprietors, and the public acquire an easement, merely, coextensive with the purposes to which they were intended to be appropriated ; and if there is a corporation to represent the public, the easement vests in such corporation, which thus becomes a trustee of a use.
2d. That the owners of lots fronting on the square not having had conveyed to them an interest or easement in the square, acquired, no interest or easement therein, separate and distinct from that held by the corporation in trust for all the citizens.
3d. If the trustee in trusts of a public nature violates its duty by authorizing an encroachment upon the rights of the public, any of the citizens as cestuis que trust, may institute a suit against such trustee, to enforce the trust. But none of the beneficiaries of the trust can proceed in their own names, against a stranger [166]*166to the trust, except when the acts of such stranger are productive of some special injury to the parties complaining not common to all the. cestuis que trust.
4th. That the location of the track of the defendant’s road in the public square was not such a special injury to the plaintiffs as entitled them to maintain the action.
5th. That the benefits afforded by a public square are those of light, air, prospect and of a public promenade; and that the track of the defendant, if laid and used by its engines and cars, was not such an interference with the enjoyment of either of these benefits as a court of equity would prohibit by injunction. (Lawrence v. Mayor &c. of New York, 2 Barb., 577. Corning v. Lowerre,. 6 John. Ch., 439. Drake v. Hudson River R. R. Co., 7 Barb., 508.)
In the Fishmongers' Co. v. East India Co., (1 Dick., 164,) the Lord Chancellor dismissed the plaintiff’s bill, filed to procure an injunction restraining the erection of a statue of George the 3d on a triangular piece of land in front of the plaintiff’s premises in the city of London, where several streets met, as calculated to lessen the value of the plaintiff’s premises. The chancellor held that the statue would not be a public nuisance, as it did not obstruct the carriage way; that- it would be beneficial to the public. It was quite immaterial, he said, whether a majority of the inhabitants of the neighboring houses do or do not object to the erection of the statue—that if its erection did lessen the value of property fronting on the triangle, it was not such a description of private nuisance as would justify the interference of the court on that ground.
If the cases cited be law, the plaintiff cannot maintain this action, because,
1st. Inclosing, and planting trees upon, the land in question does not interfere with the enjoyment by the plaintiff of any of the benefits the laying out of the square was intended to confer.
[167]*167The only possible enjoyment which inclosing and planting trees could interfere with would be that of prospect. Those of light, air and promenade are in no respect interfei-ed with. And as to the prospect, it seems to me quite obvious that, so far from its being injured, it is largely improved.
But very little, if any, benefit would be conferred by dedicating to the public a piece of ground to be left uninclosed —• to be travelled over ad libitum by persons and carriages—a common resort for all the stray cattle of the vicinage. Such a place would soon become impassable — offensive to the senses. It would be, in itself, a public nuisance.
The length of this triangle on James street is, I believe, about seventy-five feet; Hawley street is sixty feet; making, together, 135 feet. If this space is to be kept open as a street over which persons may pass at pleasure, and the city should accept it for that purpose, it would be its duty to keep it in repair. It would be no small burthen to keep such a street in proper condition for travel; and I very much doubt whether any corporation would accept of such a gift, charged with such a burthen.
But it was never intended, by those who dedicated this triangle to the public, that it should be so used. It was their purpose to furnish a place which might be inclosed and protected against the inroads of cattle, planted with trees, shrubbery and flowers—a spot pleasant to the eye and an ornament to the street. If the streets in the vicinity had been so narrow as to require for the accommodation of the public or adjoining owners, a larger space for travel, it might be inferred that the object of the dedication was to enlarge the passage way for teams, &c.; but there is no such necessity apparent or proved. And in the absence of evidence of such a purpose on the part of those dedicating the land, we must presume that they intended that it might and wmuld become a beautiful [168]*168park, a place affording pleasure to all who might look upon it or enjoy its shade, and not a disgrace to those who gave it, and the people for whose benefit it was given.
It is suggested that the city, in granting the request of the defendant for leave to inclose the triangle, gave him the right to appropriate it to his own use, to the exclusion altogether of the public.
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By the Court, Mullin, J.
The triangle in question was dedicated to .the public for the purposes of a park or square, and the city of Syracuse, if it accepted the dedication, became seised of it, not in fee, but in trust for the public, charged with the duty of preventing its appropriation to any other uses than such as the donors intended, andvof securing to the public the enjoyment of the benefits which it was designed to confer. (Village of Watertown v. Cowen, 4 Paige, 510. Anderson v. Rochester &c. R. R. Co., 9 How. Pr. Rep., 553.)
Unless a private person, living in a corporation in which land has been dedicated for a public use, has acquired in some legal way an interest in such easement, from the person dedicating the land, he cannot maintain an action against a person or corporation interfering with or disturbing such easement; unless he sustains thereby some special and peculiar damage, which is not sustained by the great mass of the inhabitants. (See cases cited, supra.)
In Anderson v. Rochester &c. R. R. Co. (9 How., [165]*165561) the defendant had instituted proceedings under the general railroad act, to acquire the right to lay its track through a public square in the city of Rochester, a part of which had been dedicated to the public for the purposes of a public square, and a part had been purchased by the city, for the same purpose. A large portion of the price had been assessed upon the owners of lots fronting on the square. The plaintiffs were such owners, and commenced the action to restrain the defendant from- laying its track on the square, upon the ground that it would be injurious to the property of such owners. It was also claimed by the plaintiffs that if the track should be laid in the square it could only be upon payment to the plaintiffs of damages for the injury they should sustain thereby. An injunction was granted, but on appeal to the General Term it was vacated. Seldew, J., lays down the following propositions, which apply, in all their force, to the case before us.
1st. That when land is dedicated to the public use the fee remains in the original proprietors, and the public acquire an easement, merely, coextensive with the purposes to which they were intended to be appropriated ; and if there is a corporation to represent the public, the easement vests in such corporation, which thus becomes a trustee of a use.
2d. That the owners of lots fronting on the square not having had conveyed to them an interest or easement in the square, acquired, no interest or easement therein, separate and distinct from that held by the corporation in trust for all the citizens.
3d. If the trustee in trusts of a public nature violates its duty by authorizing an encroachment upon the rights of the public, any of the citizens as cestuis que trust, may institute a suit against such trustee, to enforce the trust. But none of the beneficiaries of the trust can proceed in their own names, against a stranger [166]*166to the trust, except when the acts of such stranger are productive of some special injury to the parties complaining not common to all the. cestuis que trust.
4th. That the location of the track of the defendant’s road in the public square was not such a special injury to the plaintiffs as entitled them to maintain the action.
5th. That the benefits afforded by a public square are those of light, air, prospect and of a public promenade; and that the track of the defendant, if laid and used by its engines and cars, was not such an interference with the enjoyment of either of these benefits as a court of equity would prohibit by injunction. (Lawrence v. Mayor &c. of New York, 2 Barb., 577. Corning v. Lowerre,. 6 John. Ch., 439. Drake v. Hudson River R. R. Co., 7 Barb., 508.)
In the Fishmongers' Co. v. East India Co., (1 Dick., 164,) the Lord Chancellor dismissed the plaintiff’s bill, filed to procure an injunction restraining the erection of a statue of George the 3d on a triangular piece of land in front of the plaintiff’s premises in the city of London, where several streets met, as calculated to lessen the value of the plaintiff’s premises. The chancellor held that the statue would not be a public nuisance, as it did not obstruct the carriage way; that- it would be beneficial to the public. It was quite immaterial, he said, whether a majority of the inhabitants of the neighboring houses do or do not object to the erection of the statue—that if its erection did lessen the value of property fronting on the triangle, it was not such a description of private nuisance as would justify the interference of the court on that ground.
If the cases cited be law, the plaintiff cannot maintain this action, because,
1st. Inclosing, and planting trees upon, the land in question does not interfere with the enjoyment by the plaintiff of any of the benefits the laying out of the square was intended to confer.
[167]*167The only possible enjoyment which inclosing and planting trees could interfere with would be that of prospect. Those of light, air and promenade are in no respect interfei-ed with. And as to the prospect, it seems to me quite obvious that, so far from its being injured, it is largely improved.
But very little, if any, benefit would be conferred by dedicating to the public a piece of ground to be left uninclosed —• to be travelled over ad libitum by persons and carriages—a common resort for all the stray cattle of the vicinage. Such a place would soon become impassable — offensive to the senses. It would be, in itself, a public nuisance.
The length of this triangle on James street is, I believe, about seventy-five feet; Hawley street is sixty feet; making, together, 135 feet. If this space is to be kept open as a street over which persons may pass at pleasure, and the city should accept it for that purpose, it would be its duty to keep it in repair. It would be no small burthen to keep such a street in proper condition for travel; and I very much doubt whether any corporation would accept of such a gift, charged with such a burthen.
But it was never intended, by those who dedicated this triangle to the public, that it should be so used. It was their purpose to furnish a place which might be inclosed and protected against the inroads of cattle, planted with trees, shrubbery and flowers—a spot pleasant to the eye and an ornament to the street. If the streets in the vicinity had been so narrow as to require for the accommodation of the public or adjoining owners, a larger space for travel, it might be inferred that the object of the dedication was to enlarge the passage way for teams, &c.; but there is no such necessity apparent or proved. And in the absence of evidence of such a purpose on the part of those dedicating the land, we must presume that they intended that it might and wmuld become a beautiful [168]*168park, a place affording pleasure to all who might look upon it or enjoy its shade, and not a disgrace to those who gave it, and the people for whose benefit it was given.
It is suggested that the city, in granting the request of the defendant for leave to inclose the triangle, gave him the right to appropriate it to his own use, to the exclusion altogether of the public.
I do not think that the transaction between the defendant and the city is open to such a construction. The defendant’s request was, to be permitted “to set shade trees on, and to inclose a portion of the triangle with a suitable fence. ’ ’ And this was the permission granted.
It would be a breach of the trust under which the city holds the land in question to permit it to be appropriated to private use; much more to expressly permit such appropriation. A. breach of trust is never presumed. (1 Cowen & Hill’s Notes, 298, 367-8.)
The presumption may be fairly and reasonably, consistently with the language of the request on the one side, and the resolution granting it on the other, construed to mean a permission to the defendant to inclose, and plant trees upon, said triangle to be used as a public park, for the benefit of the public ; and that the defendant’s reason for making the request and assuming the expense, was to render a place adjoining his dwelling house, that from the mere want of improvement was not pleasant to the eye, and therefore lessened the enjoyment to be derived from his own premises, a pleasant little public park. If the defendant thus improved it, the public derive the same benefit from it they would have done had the city performed the same service; and they were relieved from the expense.
But if, under the permission thus granted, the defendant should attempt to appropriate this triangle to his own use, the plaintiff could maintain an action against the defendant and the city, to prevent it. But until [169]*169that is done, or atttempted, he cannot maintain such an action. (See cases cited.)
[Onondaga General Term,
April 2, 1867.
The court finds that the plaintiff has not sustained any such special damage as entitles him to maintain this suit. While this is rather a finding of a matter of law than a fact, still, within the cases cited, his finding is right. Being compelled to walk or drive a few rods further, by reason of inclosing this triangle, is not an injury which the plaintiff sustains alone. Every person passing from Townsend or Hawley street has the same additional distance to pass over. The depreciation of property is not of itself sufficient to enable the plaintiff to sustain the action. If so, there is no improvement of modern times, the erection or construction of which may not be prevented; as there is none which does not injuriously affect the pecuniary interests of some persons more than others.
As these are the only grounds suggested for sustaining the action, I the judgment of the Special Term was right, and should be affirmed.
Judgment affirmed, with costs.
Morgan, Bacon, Foster & Mullin, Justices.